Employers Wrestle With EEOC Guidance On Use Of Criminal Background Information

In late spring of 2012 the United States Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding employers' use of criminal background information in making employment-related decisions. While the EEOC Guidance does not significantly alter the framework and legal standards under which the courts determine whether an employer's use of criminal background information violates Title VII of the Civil Rights Act of 1964 (Title VII), the guidelines do elaborate and update previous EEOC comments on this issue.

Statistics show that as many as 92% of employers utilize some form of criminal background check to determine suitability for employment. Statistically, because African Americans and Hispanics are arrested and incarcerated at much greater rates than non-minorities, the EEOC has long taken the position that an employer's use of the criminal background history in making employment decisions may constitute discrimination on the basis of race or national origin in violation of Title VII unless certain standards are followed. Discrimination claims follow one or two theories: disparate treatment or disparate impact. Under a disparate treatment claim, an employer violates Title VII by treating the person's criminal history differently in light of his or her race or national origin. For example, allowing a Caucasian candidate to explain his criminal violation while denying that same opportunity to a minority. Under the disparate impact theory, the employer's blanket application of a facially neutral policy or practice by disqualifying anyone with a criminal history has a disparate impact by screening out protected group applicants unless the employer is to demonstrate that the policy or practice is job related or the employer can show that regional data or its own applicant data rebuts the statistical impact cited nationally.

The EEOC has always drawn a sharp distinction between arrests and convictions as a conviction is conclusive evidence of criminal conduct while an arrest does not establish that criminal behavior actually exists. The EEOC is also concerned that certain databases maintained by state and federal investigative agencies may contain inaccurate information, such as failure to report the ultimate outcome of a charge or whether the record has been expunged.

In order for an employer to satisfy the job-related business necessity burden, it must show that any criminal conduct exclusion "operates to effectively...